Liberal activism, typified by the four Democratic-appointed
justices, finds in the Constitution no judicially administrable
limits on federal power. Conservative pacifism, a knee-jerk
reaction to the liberal activism of the 1960s and ’70s, argues that
we must defer to Congress as much as possible, presuming its
legislation to be constitutional.

Neither approach considers that the Constitution’s structural
provisions — federalism, separation and enumeration of
powers, checks and balances — aren’t just a dry exercise in
political theory, but a means to protect individual liberty against
the concentrated power of popular majorities.

So, to avoid overturning the Affordable Care Act, Chief Justice
John Roberts rewrote two important parts of it, turning the
individual mandate into a tax and reworking the Medicaid expansion.
Ever the good conservative, Roberts was attempting to show judicial
“restraint.”

Frankenstein’s monster

Unfortunately, he failed on his own terms. As four justices
wrote in a joint dissent, “The court regards its strained statutory
interpretation as judicial modesty. It is not. It amounts instead
to a vast judicial overreaching. It creates a debilitated,
inoperable version of health-care regulation that Congress did not
enact and the public does not expect.”

The chief justice’s immodest pacifism, combined with the
activism of the four liberal justices, created the Frankenstein’s
monster that was Thursday’s decision.

It’s certainly gratifying that a majority of the justices
— Roberts and the other four Republican appointees —
rejected the government’s dangerous assertion of the power to
compel commerce in order to regulate it. That at least vindicates
those of us who led the constitutional challenge to the law on the
grounds that the government cannot regulate inactivity — in
this case, those declining to purchase health insurance. Congress’
power to regulate interstate commerce is not, as Roberts wrote, “a
general license to regulate an individual from cradle to
grave.”

Justifying the individual mandate to buy insurance under the
taxing power, however, does not rehabilitate the government’s
constitutional excesses. As Justice Anthony Kennedy said in
summarizing the joint dissent from the bench, “Structure means
liberty.” If Congress can avoid the Constitution’s structural
limits by simply “taxing” inactivity, its power is no more limited
than if it were allowed to regulate at will under the Commerce
Clause.

The court also rewrote the law’s Medicaid expansion so that
states stand to lose only new federal funding — instead of
all their funding under the program — if they do not accept
burdensome and transformative new regulations. While the court is
correct in its analysis of the government’s spending power and the
strings it can attach to funding, its ruling here is relevant only
to a hypothetical statute, not the one Congress actually
passed.

Moreover, allowing states to opt out of the new Medicaid regime
while leaving the rest of the law in place will throw the insurance
market into disarray, increase costs for individuals, and give the
states a Hobson’s choice between two undesirable alternatives
— a different but no less unfair circumstance than the one
they originally faced under the law.

A dark day

In short, liberal activism and conservative pacifism suspended
their tired debate just long enough to agree on a decision that,
while not without its bright spots, marks a dark day for
constitutional governance.

The high court and the rest of the judiciary should instead be
applying the Constitution regardless of whether it leads to
upholding or striking down legislation. And a correct application
of the Constitution inevitably rests on the Madisonian principles
of ordered liberty and limited government that the document
embodies.

Now the ball is in another court, that of the people —
those who, in ratifying the Constitution, delegated certain limited
powers to the federal government. They have opposed Obamacare all
along, and now they must rein in the government whose
unconstitutional actions have taken us to the brink of economic
disaster.